76
LINHARES, Athayde Amanda; ROS, Luiz Guilherme. The midlife crisis of the antitrust goals:
where does the Brazilian Competition Authority stand among Harvard, Chicago and Neo-
Brandesianists? Revista de Defesa da Concorrência, Brasília, v. 10, n. 2, p. 7-23, 2022.
https://doi.org/10.5286/rdc.v10i2.987
1
THE MIDLIFE CRISIS OF THE
ANTITRUST GOALS: WHERE
DOES THE BRAZILIAN COM-
PETITION AUTHORITY STAND
AMONG HARVARD, CHICAGO
AND NEO-BRANDESIANISTS?
1
A crise da meia-idade dos objetivos do antitruste: onde
está autoridade de defesa da concorrência brasileira
entre Harvard, Chicago e Neo-Brandesianos?
Amanda Athayde Linhares
2
Universidade de Brasília (UNB) - Brasília/DF, Brasil
Luiz Guilherme Ros
3
Universidade de Brasília (UNB) - Brasília/DF, Brasil
STRUCTURED ABSTRACT
Conceptualization: The article aims to analyze the evolution of competition as well as the crisis
regarding its objectives.
Editor responsável: Prof. Dr. Luis Henrique Bertolino Braido, Fundação Getúlio Vargas (FGV/RJ), Rio de Janeiro, RJ, Brasil.
ORCID: https://orcid.org/0000-0001-6085-1446.
Recebido em: 11/04/2022 Aceito em: 17/09/2022 Publicado em: 14/12/2022
2 Amanda Athayde é Professora Doutora Adjunta de Direito Empresarial na UnB. Consultora do Pinheiro Neto
Advogados. Foi servidora pública de carreira do executivo federal, Analista de Comércio Exterior. Em 2019, tornou-se
Subsecretária de Defesa Comercial e Interesse Público (SDCOM) da Secretaria de Comércio Exterior (SECEX) do Ministério
da Economia. Doutora em Direito Comercial pela USP, Bacharel em Direito pela UFMG e em Administração de Empresas com
habilitação em Comércio Exterior pela UNA. Ex-aluna da Université Paris I – Panthéon Sorbonne. É autora de dois livros
e de diversos artigos acadêmicos e de capítulos de livros na área de Direito Empresarial, Direito da Concorrência, Direito
Econômico, Comércio Internacional, Acordos de Leniência e Defesa Comercial. Co-fundadora da rede Women in Antitrust
(WIA) e membro da rede Women Inside Trade (WIT). E-mail: profa.amanda.athayde@gmail.com; Lattes: http://lattes.cnpq.
br/3657244167587179. ORCID: https://orcid.org/0000-0002-8557-9204.
3 Luiz Guilherme Ros é Sócio do escritório Silva Matos Advogados. É Consultor do Programa das Nações Unidas
perante o Cade no projeto Control of Data, Market Power, and Potential Competition in Merger Reviews. Doutorando em
Direito Econômico pela UnB. Mestre em Direito Constitucional pelo Instituto de Direito Público de Brasília. Pós-graduado em
Direito Penal Econômico pela Fundação Getúlio Vargas. Bacharel em Direito pela Universidade de Brasília (UnB). É Secretário
da Comissão de Defesa da Concorrência e membro das Comissões de Direito Concorrencial e de Direito Societário do Instituto
Brasileiro de Direito Empresarial. Foi membro da Comissão de Direito Regulatório da OAB-DF. Foi Vice-Presidente do Conselho
de Administração da LoopKey S.A., e Data Protection Ofcer da Sociedade. Foi professor voluntário na Universidade de Brasília.
Foi assistente técnico e coordenador substituto na Superintendência Geral do Cade. Foi assessor do Tribunal do Conselho
Administrativo de Defesa Econômica. E-mail: luizrosadv@gmail.com; Lattes: http://lattes.cnpq.br/8539009554163400. ORCID:
https://orcid.org/0000-0002-6413-1144.
98
LINHARES, Athayde Amanda; ROS, Luiz Guilherme. The midlife crisis of the antitrust goals:
where does the Brazilian Competition Authority stand among Harvard, Chicago and Neo-
Brandesianists? Revista de Defesa da Concorrência, Brasília, v. 10, n. 2, p. 7-23, 2022.
https://doi.org/10.5286/rdc.v10i2.987
Objective: rethink antitrust objectives, leaving aside the unidirectional objective of consumer
welfare.
Methodology: The authors analyzed academic articles that led to the present discussion, especially
considering the Brazilian scenario.
Results: It was found that despite being aware of the global discussion on antitrust objectives,
Brazil is still in the early stages of the debate.
Conclusion: The brazilian antitrust authority is still in the initial phase of the debate, not having
deepened the discussion about the objectives of the antitrust.
Keywords: antitrust; Harvard; Chicago; neo-brandesianists; consumer welfare.
RESUMO ESTRUTURADO
Contextualização: O artigo tem como objetivo analisar a evolução do direito concorrencial até o
momento atual, bem como a crise quanto aos seus objetivos.
Objetivo: Vericar a necessidade de se repensar os objetivos do antitruste, deixando de lado o
objetivo unidirecional do consumer welfare.
Método: Os autores analisaram de maneira crítica os artigos acadêmicos existentes que levaram a
presente discussão, especialmente considerando o cenário brasileiro.
Resultado: Vericou-se que apesar de ciente da discussão global sobre os objetivos do antitruste,
o Brasil ainda encontra-se em fase inicial do debate, não estando em uma crise da meia idade
como Harvard e Chicago.
Conclusões: Foi possível concluir que a despeito da ciência da discussão existente no mundo, a
autoridade concorrencial brasileira ainda encontra-se em fase inicial do debate, não tendo se
aprofundado na discussão sobre os objetivos do antitruste.
Palavras-chave: Antitrust; Harvard; Chicago; neo-brandesianists; consumer welfare.
Summary: 1. Introduction; 2. A brief overview of the Birth of the Antitrust
Law in North America; 3. A brief overview of the Harvard School; 4. A brief
overview of the Chicago School; 5. A brief overview of the neo-brandesianists
and the Midlife Crisis of the Antitrust Goals; 6. The discussion in the Brazilian
perspective; 7. Conclusion; 8. References.
From a historical point of view, precision is necessary: competition law as we know it today
is not the same as in its origins. It has undergone important qualitative mutations, related to
those of the means of production, and so relevant that they may lead us to assume that new
elds of law were created (BAPTISTA, 1996, p. 4).
1. INTRODUCTION
This paper aims to present a brief historical overview of the emergence and development
of competition law, as well as the movements that inuenced its creation and evolution, as well as
the objectives that led to the competition defense policy and the theoretical divergences present in
98
LINHARES, Athayde Amanda; ROS, Luiz Guilherme. The midlife crisis of the antitrust goals:
where does the Brazilian Competition Authority stand among Harvard, Chicago and Neo-
Brandesianists? Revista de Defesa da Concorrência, Brasília, v. 10, n. 2, p. 7-23, 2022.
https://doi.org/10.5286/rdc.v10i2.987
the specialized literature and Brazilian case laws. This introduction is part of this paper, as its rst
chapter.
The second chapter will present a brief overview of what motivated and how was the birth of
competition law in the North American. The third chapter will then present the rst school of thought
that guided competition law, called the Harvard School. This school defended that concentrated
market structures, whether oligopolistic or monopolistic, would, per se, be harmful to the market.
Louis Brandeis, an associate justice of the North American Supreme Court, between 1916 and 1939,
coined phrases that synthesized this line of thought, such as “big is bad”, “small is beautiful” and
“the curse of bigness”. It will also be described the counterarguments of the structuralist thought
(BORK, 1993; HOVENKAMP, 2018).
4
The fourth chapter, and under the inuence of the neoliberal movement, is based on idea
that the State should, as much as possible, avoid intervening in the economic domain. This would
allow companies to compete more vigorously in the market. The Chicago School proposed that
competition laws would have a single economic objective, namely the consumer welfare. For decades
antitrust law developed under the mantra that State interventions in the economic domain based on
antitrust law should only occur when market practices could cause a decrease in consumer welfare.
Thus, market practices should only be penalized when they resulted in a net negative effect for the
consumer, regardless of the structure of the market analyzed.
However, in the fth chapter it will be presented that this singular objective of competition
law has been questioned lately, as it is unable to prevent the formation of large economic
conglomerates, especially big techs. This new current, called the “hipster antitrust” or, as they
nominate neo-brandesianists, began to advocate a return to the origins of antitrust objectives.
According to them, competition law should have a multidimensional approach, considering political,
social, and economic concepts.
Having all that in mind, the sixth chapter aims to make a quick review of the case law in
Brazil that has mentioned the discussion about the antitrust goals. How is the Brazilian competition
authority dealing with that discussion? Are we equally in a midlife crisis or we are still teenagers
analyzing Harvard, Chicago and Neo-Brandesianists? As we will see, the competition authority in
Brazil has never deeply analyzed this discussion and has issued different decisions about the matter.
Finally, the seventh chapter will present the conclusion on this topic addressed and present
how the Brazilian Antitrust Authority is dealing with this discussion.
2. A BRIEF OVERVIEW OF THE BIRTH OF THE ANTITRUST LAW IN NORTH
AMERICA
Competition law was born and developed in North America. The rst registered legislation is
4 In the American Tobacco and Standard Oil decisions of 1911, the Supreme Court had shifted the already ambiguous
terms of the Sherman Act toward even greater uncertainty. In the Standard Oil case, the court in effect determined that only
“unreasonable” restraints of trade were illegal tinder the Sherman Act, not all such restraints. This “rule of reason”, as it
came to be called, satised none of the parties most directly concerned in the antitrust dehate. […] More than anything else,
executives of both peripheral and center rms wanted certainty: a bright line between legality and illegality. Many of them
began to think that continuous administration of economic policy by a regulatory commission was preferable to what they
saw as the spasmodic whims of individual judges (McCRAW, 1984, p. 130).
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LINHARES, Athayde Amanda; ROS, Luiz Guilherme. The midlife crisis of the antitrust goals:
where does the Brazilian Competition Authority stand among Harvard, Chicago and Neo-
Brandesianists? Revista de Defesa da Concorrência, Brasília, v. 10, n. 2, p. 7-23, 2022.
https://doi.org/10.5286/rdc.v10i2.987
Canadian and called Competition Act (1885).
5
In turn, the development of competition law – as well as
the broad reach this eld of study has attained – has occurred in the United States. The beginning of
the discussion regarding this eld of study dates to 1877, when a strike movement started by railroad
employees in the State of West Virginia spread throughout North America and resulted in a massive
blockage of transport, causing a signicant shortage of goods in the main urban centers.
This movement, which spread to several economic sectors, had the support of several
public authorities, as well as private agents, taking on signicant proportions in the North American
economy and political system. At the time, the main dissatisfaction was related to the power amassed
by large conglomerates (trusts)
6
and, consequently, the way in which such private agents were able
to inuence the political-economic scenario, asserting their interests at any cost.
7
For no other reason trusts and antitrust law (a nomenclature that derives from that name)
were at the center of the debates during the presidential election in the United States of America,
with the repudiation of trusts and the promise to ght them being a common point among candidates
(FERRAZ, 2014). Finally, to stop these conglomerates and their harmful effects on the market and
consumers, the Sherman Act (1890)
8
emerged and was later complemented by the Clayton Act (1914)
and the FTC Act (1914).
9
The Brazilian author Calixto Salomão
10
claims that the emergence of the Sherman Act would
be related to consumer protection. On the other hand, Paula Forgioni,
11
also Brazilian, argues that
the legislation would have been drafted with the purpose of protecting the market itself, which was
self-destructive given the excess of economic freedom and lack of control by authorities. Lina Khan
12
,
current president of the Federal Trade Commission, mentions that the purpose of the Law would be
to preserve “open markets”, as well as increase opportunities for new entrants, thus preventing large
corporations from extracting wealth from consumers and producers, and, consequently, market
concentration and abuse.
5 Canada is credited with pioneering competition law in 1889, by enacting the Act for the prevention and suppression
of combinations formed in restraint of trade, whose purpose was to combat arrangements or combinations aimed at restricting
trade by xing prices or restriction of production (cartels), which was incorporated three years later into Canada’s rst Criminal
Code. In this legislation it was made explicit that the xing of prices and other agreements between competitors were species
of abusive conduct (GABAN; DOMINGUES, 2009, p. 4).
6 U.S. antitrust was born in 1890 out of a concern for the power and exploitations of the new, large, and powerful
business organizations called trusts (FOX, 2013, p. 1).
7 Characteristic of this position is the cartoon shown by Schapiro (2018, p. 715). According to the drawing, trusts were
seen as the “bosses” of the senators and, consequently, the most important political agents in the North American scenario.
8 For further information about elements that inuenced the original version of the Sherman Act, see Diniz (2018).
9 Not since 1912, when Teddy Roosevelt ran for President emphasizing the need to control corporate power, have
antitrust issues had such political salience. While Roosevelt did not win, Congress passed the Federal Trade Commission Act
and the Clayton Act in 1914, signicantly strengthening the Sherman Act. (SCHAPIRO, 2018, p. 715).
10 The exposition of the political-economic factors relevant to the approval of the Sherman Act makes it possible to
correctly outline the issue. First, it is quite evident that the biggest concern with monopolies at that time was their negative
economic effects on the consumer (SALOMÃO FILHO, 2007, p. 71).
11 Indeed, this legislation should be understood as the most signicant legal document to showcase the reaction
against the concentration of power in the hands of a few economic agents, and seek to regulate it. It should not be said
that the Sherman Act constitutes a reaction against economic liberalism, as it aimed precisely at correcting distortions that
were brought about by excessive capital accumulation, that is, correcting the distortions created by the liberal system itself.
Despite the contrary opinion of part of the North American literature, the Sherman Act tried, at rst, to protect the market (or
the productive system) against its self-destructive effects (FORGIONI, 2012, p. 65).
12 Taken as a whole, the antitrust laws were intended to preserve open markets and enhance opportunity, prevent
large rms from extracting wealth from producers and consumers, and safeguard against extreme concentrations of private
power (KHAN, 2018, p. 7).
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LINHARES, Athayde Amanda; ROS, Luiz Guilherme. The midlife crisis of the antitrust goals:
where does the Brazilian Competition Authority stand among Harvard, Chicago and Neo-
Brandesianists? Revista de Defesa da Concorrência, Brasília, v. 10, n. 2, p. 7-23, 2022.
https://doi.org/10.5286/rdc.v10i2.987
The Sherman Act would, therefore, represent the redemption of liberalism which, without
the proposed regulation, would allow monopolistic concentrations and the formation of large
conglomerates and cartels which would distort the natural rules of competition. This vision sought to
establish small businesses, workers, traders, and farmers as a group to be protected by legislation.
13
In this sense, and to combat the various forms of abuse of economic and political power,
Antitrust Law was born without a clear and well-dened objective. In our view, however, the lack
of direction was not problematic, since the central aspect of these legislations was to ght very
powerful economic conglomerates that had great inuence over the economic and political system
and not, necessarily, to protect the market and free competition.
Throughout its evolution, and as will be shown later in the third and fourth chapters,
antitrust policy and law was strongly inuenced by two movements, namely: the Harvard School,
whose principles prevailed until the 60s, and the Chicago School, which is the dominant school of
thought until the present day,
14
but which has had its conclusions and objectives questioned by a
new movement.
3. A BRIEF OVERVIEW OF THE HARVARD SCHOOL
The Harvard School, also called the Structuralist School, inuenced the birth and early
development of antitrust laws. Especially concerned with concentrated market structures, it
proposed that the main goal of antitrust law would be to maintain a plural market, with a diversity
of competitors, preferably small ones.
The Harvard School was naturally strongly inuenced by the reality of its time, that is, the
existence of large corporations which upheld their own interests using their immense economic
and political power to the detriment of small traders, consumers, workers, as well as much of the
economy and society.
There was no doubt, as there isn’t today, that the abuse of market power has harmful effects
on the economy and society and must be repressed. To this end, and supported by the thinking of
the Harvard School, American authorities began to condemn a series of practices perpetrated by
dominant companies, such as vertical practices and mergers and acquisitions.
This school of thought believed that concentrated market structures were harmful to society,
so both monopolistic and oligopolistic markets were seen as problematic for consumers and small
producers and, therefore, for the market itself and the North American economy.
15
Inuenced by
13 The Sherman Act was passed in 1890, prior to the beginning of the Progressive Era, and it reected largely populist
concerns. Although both Gilded Age populism and progressivism tilted left in important respects, there were sharp differences
between them. Populism was to a much greater extent “politics in the raw,” with small business and farmers being the
principal interest groups seeking protection. The perceived threats were big business, with a focus mainly on railroads and
banks. Populism was initially heavily agrarian, and only later became aligned with the much more urban labor movement.
As most populist movements, it was also quite anti-intellectual, strongly suspicious of higher learning. [...] The rst set of
explicitly progressive antitrust reforms were the Clayton Act and the Federal Trade Commission Act (“FTC Act”), both passed in
1914 during Woodrow Wilson’s rst term (HOVENKAMP, 2018, p. 77).
14 It is not the goal here to review all the schools of thought which have inuenced competition law, since it would be
necessary to present other relevant positions, such as the Austrian School, the Ordoliberal School, among others.
15 This is troubling because monopolies and oligopolies produce a host of harms. They depress wages and salaries,
raise consumer costs, block entrepreneurship, stunt investment, retard innovation, and render supply chains and complex
systems highly fragile. Dominant rms’ economic power allows them, in turn, to concentrate political power, which they then
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LINHARES, Athayde Amanda; ROS, Luiz Guilherme. The midlife crisis of the antitrust goals:
where does the Brazilian Competition Authority stand among Harvard, Chicago and Neo-
Brandesianists? Revista de Defesa da Concorrência, Brasília, v. 10, n. 2, p. 7-23, 2022.
https://doi.org/10.5286/rdc.v10i2.987
Edward Chamberlain, Edward Mason, and Joe Bain, this trend indicated that competition law should
focus on the protection of small players, seeking to achieve the distribution of wealth in society
(BAKER; SALOP, 2015), small businesses protection,
16
concentration of political power (WALLER,
2019; PITOFSKY, 1979), preservation of the competitive process through the maintenance of a plural
market, with multiple competitors,
17
as well as other social and political aspects, always based on the
deconcentrating of market power held by large corporations.
It is for no other reason that, at the time, the US Supreme Court issued several rulings
indicating that the objective of competition law would encompass political, social, and economic
objectives. It is worth remembering that the rst decision that discussed the objectives of antitrust
came in 1897, just seven years after the Sherman Act, in the judgment of the United States v. Trans-
Missouri Freight Ass’n (166 U.S. 290 323, 1897). In this case, the US Supreme Court held that the purpose
of antitrust was “to protect small merchants and men of value”, even at the cost of raising domestic
commodity prices.
As the Brazilian author Eric Jasper (2019, p. 12) exposes, throughout the prevalence of the
Harvard School as dominant school of through, the Supreme Court signicantly expanded what
the scope of competition law. In this context, in several precedents, it declared that the Sherman
Act would have the following objectives: (i) to prevent market concentration, preserving, whenever
possible, the organization of industries in small competing units; (ii) to protect companies’ freedom
to sell and trade goods; (iii) to protect the public from market failures; (iv) to preserve the freedom
of companies to compete with “vigor, imagination, devotion, and ingenuity”; (v) to prohibit practices
that prevent companies from accessing the market; (vi) to ensure equality of opportunity and protect
the public from monopolies and cartels; and (vii) to be a compass of economic freedom to preserve
free competition.
According to Stucke (2012) the US Supreme Court has already dened the objectives of the
Sherman Act as the followings: (i) to prevent the concentration of markets and preserve the industrial
organization in small units; (ii) to protect companies’ freedom to trade; (iii) promoting consumer
welfare, efcient pricing, and price competition; (iv) protect the public from market failures; (v)
preserve economic freedom and freedom of competition; (vi) condemn practices that exclude
competitors from the market in which they nd themselves; (vii) protection of equal opportunity and
public protection against male equality of opportunity arising from the destruction of competition
in and the occurrence of monopoly trade coincidences; (viii) be a true “Magna Carta” freedom of the
economy in the United States; and (ix) certain precautions for monopolies that, in any case, limit
opportunities and freedoms.
It can be seen, therefore, that competition law was not conned to a single economic
objective
18
, and there was a tendency for competition law to consider public interests in a broad
use to win favorable policies and further entrench their dominance (KHAN, 2018, p. 4).
16 This view was strongly inuenced by Louis Brandeis, former associate justice of the North American Supreme Court.
In this sense, “It is evident that Brandeis’ thesis was based on the assumption that the most important thing for competition
is the structure of the market, including the number of players, which is in line with the structuralist model of the Harvard
School” (GUIMARÃES, 2021).
17 From the earliest days of antitrust laws in the United States, the promotion and preservation of democracy was one
of the goals of the drafters and supporters of state and federal antitrust law. While the political content of antitrust law in the
United States has waxed and waned over the ensuing decades, competition law and policy has always recognized the need for
a pluralism of economic actors and interests (WALLER, 2019, p. 807).
18 As explained by Buchain (2014, p. 235), another school [Harvard School], called the non-economic or public
interest approach, argues that competition policy stems from multiple values, which are not easily quantied nor can they
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LINHARES, Athayde Amanda; ROS, Luiz Guilherme. The midlife crisis of the antitrust goals:
where does the Brazilian Competition Authority stand among Harvard, Chicago and Neo-
Brandesianists? Revista de Defesa da Concorrência, Brasília, v. 10, n. 2, p. 7-23, 2022.
https://doi.org/10.5286/rdc.v10i2.987
sense, as it pursues meta-legal or socio-political ends.
19
It so happens that this broad denition
of antitrust, with multiple objectives aimed at social aspects, biggened to fear several dominant
companies in their markets of been penalized by antitrust authorities. Considering that since 1897
the Supreme Court had understood that the protection of consumers and small businesses should
be the central objective of antitrust policy, the emergence of criticisms of this position in the 1960s
should not be viewed as strange,
20-21
but as a battle for the economic power of the companies.
4. A BRIEF OVERVIEW OF THE CHICAGO SCHOOL
The Harvard School advocated for the protection of a deconcentrated market structure,
with the greatest possible number of economic agents, preferably small companies, preventing the
formation of oligopolistic or monopolistic markets. In contrast to this vision, in the 1960s and 1970s,
the Chicago School developed. It was deeply inuenced by neoliberal thinking, by the increase in
international competition, and by the dynamism of the global economy.
Members of the Chicago School argued that state intervention would do more harm than
good to consumers and the market,
22
because it would disincentivize companies to be more efcient,
preventing economic growth.
23
Consequently, false convictions about the role of antitrust imposed
on the basis of structuralist thinking would be extremely harmful to the economy, especially when
be exclusively represented and reduced to the objective concept of economic efciency, this is because the multiplicity of
values reected in the entire social culture and its institutions must be received as elements of application for the defense
of competition.
19 As also shown by Buchain (2014, p. 248): Attempts to add so many objectives into competition policy tend to
generate an incorrect interpretation and a distortion of its application. It is unlikely that a legislative framework will express
clear and economically accurate patterns of behavior in the competitive market when trying to achieve different goals. On the
contrary, laws of this nature can generate market distortions and weaken the competitive process.
20 Bork (1978, p. 133) explains: First, antitrust enforcement is a very costly procedure, and it makes no economic sense
to spend resources to do as much harm as good. There is then a net economic loss. Second, private restriction of output may
be less harmful to consumers than mistaken rules of law that inhibit efciency. Efciency that may not be gained in one way
may be blocked because other ways are too expensive, but a market position that creates output restriction and higher prices
will always be eroded if it is not based upon superior efciency. Finally, when no afrmative case for intervention is shown,
the general preference for freedom should bar legal coercion.
21 Critical to any coherent antitrust policy is administrability. Simply ticking off concerns and assigning them to
antitrust policy is worse than useless unless the concerns can be tied to a coherent set of rules for determining liability and
remedies. For example, if we say that small-business protectionism should be an antitrust goal then we must have antitrust
rules for implementing it. A rule that simply says that in every antitrust dispute the smaller rm or interests aligned with it
should win would drive the economy into the stone age. We would end up condemning mergers simply because they reduce
costs, above cost price cuts because smaller rms are unable to match them, or cost-saving vertical integration because
unintegrated rms cannot claim the same cost savings. So where does one draw the line? One serious advantage of an output-
maximizing rule is that it provides a rational target to shoot at, although one must not exaggerate the ease of implementation
(HOVENKAMP, 2018, p. 109).
22 Faced with this excess of state intervention, the Chicago School came to understand that the authorities ended up
incurring two types of errors in their decisions. On the one hand, there would be Type I errors, consisting of false acquittals,
that is, illicit conduct which is not repressed by the authority. On the other hand, there would be type II errors, considered
the worst by this school, which consisted of wrongful convictions, that is, lawful and efcient conducts that ended up being
condemned by the authorities, resulting in false convictions.
23 According to Schapiro (2018, p. 745): The fundamental danger that 21st century populism poses to antitrust in that
populism will cause us to abandon this core principle and thereby undermine economic growth and deprive consumers of
many of the benets of vigorous but fair competition. Economic growth will be undermined if rms are discouraged from
competing vigorously for fear that they will be found to have violated the antitrust laws, or for fear they will be broken up if
they are too successful.
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LINHARES, Athayde Amanda; ROS, Luiz Guilherme. The midlife crisis of the antitrust goals:
where does the Brazilian Competition Authority stand among Harvard, Chicago and Neo-
Brandesianists? Revista de Defesa da Concorrência, Brasília, v. 10, n. 2, p. 7-23, 2022.
https://doi.org/10.5286/rdc.v10i2.987
applied to rational economic agents,
24
since their practices would be lawful, pro-competitive, and
benecial to the consumer in most of the cases. Thus, an argument that emerged in the 1960s was
that a multidimensional and sociopolitical approach to competition law would lead to inconsistent
reasoning regarding its application, which would have culminated in the undesirable consequence of
imposing similar condemnation on both anti-competitive and competitive practices.
25
In this scenario, the alleged instrumentalization of competition law, along with the lack of clarity
regarding the application of existing competition rules, would cause, according to those liberals,
enormous legal uncertainty, since there would have no predictability of which practices could be
conducted by companies, especially those that held market power.
As explained in the third chapter, the Harvard School played a fundamental role in the
development of the North American competition defense policy. Its theoretical basis was fundamental
to allow large conglomerates that abused their economic and political power to be dismantled,
putting brakes on economic liberalism. However, despite its importance, some authors argued that
it ended up bringing some degree of legal uncertainty to the market and also stunting economic
growth.
This school was strongly inuenced by neoliberal thinking and had an extremely benevolent
view of companies. It believed that the market would be capable of self-regulation and that state
intervention, regardless of its mechanism, had greater potential to harm the market than to correct
its failures. Not by chance did this school understand that vertical practices would be, for the most
part, benecial and would have the power to maximize the well-being of the consumer. Taking liberal
values to the extreme, the Chicago School stated that the State should not intervene in the economic
domain to prevent those conducts. Furthermore, it considered that even cartels should not be seen
as a long-term problem, as their instability
26
and the interest of other agents in maximizing wealth
would lead to the end of the collusive conduct.
Thus, the Chicago School considered the conception of the Harvard School that concentration
consisted in a market aw naive. For Chicago, market concentration was one more point to consider,
but in no way could it be the core of competition law. Through scholars Robert Bork, Frank Easterbrook,
Richard Posner, and Bowman Jr., the Chicago School consolidated the understanding that antitrust
law should focus exclusively on economic welfare through efciency, since, for them, competition is
related to the ability to expand supply. Furthermore, it argued that antitrust policy would not need
to concern itself with increasing purchasing power, as it would achieve this objective indirectly, by
prohibiting cartels and monopolies, focusing solely on market efciency.
24 For further information on the discussion of game theory and rational economic agents, see Ros (2021).
25 It is conventional to call such “errors” in the application of the antitrust law as being type I errors and type II errors.
The Type I Error, or “False conviction”, consists of the mistake of condemning a company for practices that are actually pro-
competitive. In turn, the Type II Error, or “False acquittal”, refers to the acquittal of a company involved in anticompetitive
practices.
26 Its instability, on the other hand, is a consequence of the difculties inherent in the prolonged maintenance of illicit
schemes with collective participation and, above all, of the gains inherent in timely breaches and secret betrayals: if the illicit
agreement exists and, for example, one of the participants offers the good to eventual consumers for a value lower than that
agreed by the cartel, the latter can substantially increase its earnings, even above those obtained by core agreement member.
These two factors represent the great difculty and possibilities that open up to the leniency agreement. In order to obtain
confessions, it is therefore necessary to create a complex system of incentives, which makes it more attractive for the offender
to choose to confess and stop earning the gains he had been obtaining through the practice of the infraction (RUFINO, 2015,
p. 52).
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In short, and unlike the structuralist school, the Chicago School relied on two main
assumptions: (i) the best antitrust policy available in the real world to maximize efciency was the
one obtained from the neoclassical price theory; and (ii) economic efciency whose results are
shared with the consumer would be the antitrust objective.
27
And here is the catch of this school of
thought: it sought to eliminate sociopolitical concepts from the analysis of competition law
28
and
indicate that it should focus exclusively on an economic concept: consumer welfare:
If consumers lose from a practice, then it is counted as inefcient, or
anticompetitive, even if producers gain more than consumers lose. The
consumer-welfare model is fundamentally neoclassical in its understanding
of markets, but it articulates the goal of antitrust as higher output, and thus
lower prices (HOVENKAMP, 2018, p. 89).
In other words, the Chicago scholars undermine the theoretical basis of the Harvard School,
as it proposes that it was not the role of the state to maintain a plural market structure, but rather
to encourage companies to be efcient and always seek to maximize consumer welfare,
29
regardless
of market structure: oligopoly, monopoly, or a perfectly competitive market.
30
The main focus of this
thought, therefore, was economic efciency leading to consumer welfare.
31
By pursuing consumer
welfare, antitrust law would not need to look for any other objective.
Following this school, it came to be common sense that companies should compete
vigorously for consumers, which would mean lowering the price of products, in addition to creating
more innovative products. Efciencies achieved would be passed on to consumers, which would
imply an improvement in consumer welfare. In this sense, objectives such as income distribution,
price reduction per se, among other socio-political objectives, would be unnecessary
32
and even
undesirable, as they could give rise to legal uncertainties.
In this scenario, the Chicago School began to develop, based on liberal values, being a
more permissive line of thought with vertical and unilateral practices. It is precisely this allegedly
permissivity that has led to criticism of the Chicago School, as will be discussed throughout the next
27 As explained by Bork (1978, p. 91) [t]he whole task of antitrust can be summed up as the effort to improve allocative
efciency without impairing productive efciency so greatly as to produce either no gain or a net loss in consumer welfare.
28 In 1980, American antitrust law had no “paradigm” in the sense of loss or gain that could be calculated. Antitrust
was guided by principles. It was for diversity and access to markets; it was against high concentration and abuses of power.
Powerful rms were assumed to have incentives to use their power. AAG Baxter introduced a new perspective and a paradigm.
He did so most powerfully through merger guidelines.3 The perspective was that business acts are usually efcient (welfare
increasing) and should be presumed so. The paradigm was that mergers and conduct are not anticompetitive in the eyes of
the antitrust law unless they reduce consumer surplus (FOX, 2013, p. 3).
29 Greater antitrust enforcement generally would improve the distribution of income and wealth by reducing the
impact of market power, particularly if the agencies fully embrace the consumer welfare standard (BAKER; SALOP, 2015, p. 19).
30 Basic economic theory demonstrates that when rms have to compete for customers, it leads to lower prices, higher
quality goods and services, greater variety, and more innovation. [...] When there is insufcient competition, dominant rms
can use their market power to charge higher prices, offer decreased quality, and block potential competitors from entering
the market—meaning entrepreneurs and small businesses cannot participate on a level playing eld and new ideas cannot
become new goods and services (BOUSHEY; KNUDSEN, 2021, p. 6).
31 Thus, for the reasoning which underpins the economic approach, competition policy has the sole objective of
maximizing economic efciency. According to this view, public policies regarding competition do not admit the selection
of sociopolitical objectives, such as the reduction of regional inequalities and others that were designated in the Brazilian
Constitution, rejecting them as intrinsic to competition policy because they depend on the judgment of subjective values and,
therefore, are impossible to consistently apply to competition law (BUCHAIN, 2014, p. 235).
32 As brilliantly explained by Elzinga (1977, p. 1194).
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chapter.
5. A BRIEF OVERVIEW OF THE NEO-BRANDESIANISTS AND THE MIDLIFE
CRISIS OF THE ANTITRUST GOALS
For decades, the use of the consumer welfare concept was the main target of the antitrustlaw
33
and allegedly provided greater legal certainty for companies following state investigations.
34
-
35
It
so happens that for the neo-Brandesianists, referred to as “antitrust hipsters”
36
or “romantics”,
37
the use of a strictly economic concept made antitrust law very permissive, which caused – or at
least contributed to – several problems,
38
such as concentration of wealth, economic concentration,
increased inequality, increased prot margins without passing on efciencies to consumers, among
others.
39
This “new” movement defends a return to the origins of antitrust, through which the
authorities should stop using a single economic concept and should reorient antitrust towards other
33 The adoption of the consumer welfare standard as antitrust’s lodestar has come with numerous benets that have
reoriented antitrust jurisprudence over the last fty years to more effectively protect competition. At its core, the consumer
welfare standard provides a coherent, workable, and objective framework to replace the multiple, and often contradictory,
vague social and political goals that governed antitrust prior to the modern era. By providing a disciplined framework for
antitrust analysis, unied under a singular objective, the consumer welfare model fosters the rule of law and helps prevent
arbitrary or politically motivated enforcement decisions. Similarly, promoting the use of the consumer welfare approach by
competition authorities worldwide reduces the opportunity for enforcers to use their domestic competition laws to pursue
non-economic objectives, including a protectionist agenda that targets U.S. and other foreign businesses. By realigning
antitrust under a singular objective grounded in economics, the consumer welfare standard heralded the advent of the modern
antitrust revolution that squarely rejects populist desires to balance multiple non-economic factors in favor of a consistent
and coherent framework focused on the straightforward, but elegant, question of whether a transaction or commercial
arrangement makes consumers better off (WRIGHT et al., 2019, p. 11).
34 But a strictly followed consumer-welfare approach, condemning a restraint or practice only when it realistically
threatens an anticompetitive output reduction, has one additional advantage: properly followed, it gets antitrust out of the
business of favoring particular special-interest constituencies other than consumers themselves (HOVENKAMP, 2018, p. 93).
35 Antitrust jurisprudence went from being confused and ineffective to the modern doctrine that can – and does –
effectively protect consumers and prevent anticompetitive business practices while allowing practices that are a normal part
of the competitive process and benet consumers (WRIGHT et al., 2018, p. 8).
36 As explained by Schmidt (2018, p. 1), hipster antitrust is a terminology that was coined by attorney Konstantin
Medvedovsky in June 2017, having been popularized with the help of former FTC advisor Joshua D. Wright.
37 Romantics are taking over the antitrust law” […] Overall, the effectiveness of antitrust authorities should be enhanced
by applying reason to antitrust law rather than fears, feelings, or sentiments. The romance must be taken out of antitrust. [...]
Antitrust law is the subject of numerous debates questioning its effectiveness in the digital age (SCHREPEL, 2020, p. 2).
38 According to Foer and Durst (2018) the consumer welfare model designated as the exclusive goal for antitrust is both
confusing and incomplete. In the same way Wu (2018) points that the good faith version of the consumer welfare standard
has failed on its own terms. Hoping to impart a scientic-like certainty to the antitrust law, it has not succeeded; and instead
run into the limits of a legal system to assess the full range of costs and benets that would be necessary to the enterprise.
This single objective neglected a range of harms important to the health of the economy among others dynamic costs, quality
effects, and projected prices, let alone potential harms to labor markets and political considerations.
39 As pointed by Schapiro (2018, p. 718), a number of progressive think tanks and advocates have issued reports
over the past two years documenting the decline in competition in the American economy, linking that decline to increasing
inequality, and offering policy proposals to reinvigorate competition policy. The American Antitrust Institute (2016) , a respected
organization long committed to more effective antitrust enforcement, published a report in June 2016 entitled “A National
Competition Policy: Unpacking the Problem of Declining Competition and Setting Priorities Moving Forward”. This report lists
three main symptoms of declining competition: rising concentration, higher prots to a few big rms combined with slowing
rates of start-up activity, and widening inequality gaps. The report rather boldly claims (AAI, 2016, p. 7): “There is a growing
consensus that inadequate antitrust policy has contributed to the concentration problem and associated inequality effects”.
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https://doi.org/10.5286/rdc.v10i2.987
objectives, such as social and political objectives.
40
This “return to the origins”
41
, ie, the birth of
antitrust law, would turn competition policy to broader objectives, renouncing the principles of the
Chicago School.
42 43
Lina Khan, one of the main exponents of this movement, antitrust authorities should take
into account other principles for the achievement of antitrust policy, choosing a holistic approach
to identify the damage caused by dominant companies, recognizing that violations of competition
law would harm workers, independent companies, and consumers.
44
It so happens that antitrust
objectives seem to be under a midlife crisis.
6. THE DISCUSSION IN THE BRAZILIAN PERSPECTIVE
Despite the vigorous debate regarding the objectives of the Antitrust Law, especially in the
United States, the scenario seems different in the Brazilian jurisprudence.
The case law in Brazil and the Brazilian legislation seems to identify the existence of multiple
objectives for the competition law. In this sense, both the Brazilian Constitution and antitrust law
enumerate several social objectives for the economic order and antitrust policy. As we can see from
40 The previous articles in this series showed the need for Antitrust Law to take into account other objectives than
mere consumer protection, even more so when this purpose is considered by the restrictive bias of the consumer welfare
standard, in the terms proposed by the Chicago School. [...] More than that, new approaches, insofar as they go beyond the
single-pointed vision of Antitrust Law, not only do not ignore the need for consumer protection, but also seek to do so in an
even broader and more comprehensive way. effective, overcoming a series of problems related to the restrictive criterion
of maximizing consumer welfare. For this reason, criticisms are pertinent in the sense that consumer protection must (i) be
expanded, seeking to redeem its commitments not only regarding lower prices, but also quality, diversity, and innovation; and
(ii) be effective, no longer content with mere presumptions and conjectures, many of which depend on a series of variables in
the long term, and must be based on the real assessment of the impacts of the actions of the agents holding economic power
over consumers both in the short, medium, and long term (FRAZÃO, 2020). For this group of scholars, antitrust should concern
itself not only with the effects of anticompetitive conduct and concentrated market structures, but also with the effects on
social problems, which range from the effects of a more unequal society to the harmful effects of climate change, passing by
themes of “national interest” (whatever that means). In this sense, the criticism made is that observing consumer welfare and
economic efciency (ideas concerning the old Chicago school) would no longer be sufcient antitrust policy objectives and
these should change, in order to achieve the welfare of the society, in a holistic way, incorporating a series of issues, such as
equity and worker welfare (SCHMIDT, 2018).
41 According to Khan (2018, p. 6), democrats, meanwhile, last year identied renewed antitrust as a key pillar of their
economic agenda, promising to “revisit our antitrust laws to ensure that the economic freedom of all Americans—consumers,
workers, and small businesses—come before big corporations that are getting even bigger.”
42 At its core, the Hipster Antitrust movement calls for a total rejection of the commitment to economic methodology
and evidence-based policy that lies at the heart of modern antitrust enforcement. The Hipster Antitrust movement would
reject Chicago School free marketers’ approach to antitrust just as readily as it would Post-Chicago interventions. […] These
include a return to “big-is-bad” antitrust enforcement based upon rm size without regard for effect on consumers, making
presumptively unlawful broad categories of mergers and acquisitions outright (e.g., all mergers beyond a certain size threshold
even in the absence of potential horizontal or vertical issues), and abandoning the consumer welfare standard to take into
account effects on income inequality and wages (WRIGHT et al., 2019, p. 5).
43 Hovenkamp (2021) points out that is necessary to be careful about those changes. Although the progressive wing of
antitrust does a better job of identifying the economic problems that the economy faces, some of its proposed solutions are
calculated to make them worse. The pursuit of business concentration or bigness for its own sake will injure consumers far
more than it benets small business, the intended beneciaries. A proposal to forbid large platforms from selling their own
products in competition with the products of others will harm both consumers and small business, although it will benet
some large rms.
44 There are a few key principles that should animate the agency’s approach across its work. First, we need to take
a holistic approach to identifying harms, recognizing that antitrust and consumer protection violations harm workers and
independent businesses as well as consumers (KHAN, 2021, p. 1).
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https://doi.org/10.5286/rdc.v10i2.987
the Brazilian Constitution,
45
the economic order is founded on several sociopolitical objectives, such
as (i) national sovereignty; (ii) private property; (iii) social function of property; (iv) free competition; (v)
consumer protection; (vi) environment protection, (vii) reduction in regional and social inequalities;
(viii) pursuit of full employment; (ix) preferential treatment for small-sized enterprises.
In this scenario, once the Brazilian Constitution raised several sociopolitical objectives, it
would be inaccurately to establish one single goal for the Competition Law in Brazil. Echoing this
position, Frazāo (2020) explains that although the Constitution (art. 173 § 4) makes clear concerns
regarding the abuse of economic power, the major law also establishes other objectives for the
economic order (art. 170), as mentioned above. According to the author, the Constitution highlights
other important principles that need to be equally considered while applying the Law. Therefore, the
author explains that “from the constitutional point of view, the single-pointed view of Antitrust Law
is not justied, only focused on consumer protection”.
Consequently, the antitrust law should be guided not only by the economic objective of
consumer welfare but take into consideration other sociopolitical objectives. According to Borges
(2020) in extensive research of the jurisprudence of acts of economic concentration from 1994 to
2008, the orientation of a single-point objective led to an exaggeration of efciency-based antitrust
objectives and blindness to non-efciency-based antitrust objectives, which contributed to the
generation of economic inequalities. Also, some economic studies have indicated that in the US
markets have become more concentrated, companies have started to realize higher prots while
employee salaries and working conditions have worsened, which has led to the current questioning
of the antitrust status quo.
46
Regarding case law in Brazil specically, there are some precedents that mentioned the
discussion about the objectives of antitrust. However, this matter has never been a real point of
interest for our competition authority. The Brazilian author Eric Jasper (2019, p. 2) mentions that the
“Brazilian Competition Law presents diffuse objectives and jurisprudence of CADE was not able to
expressly articulate an objective or set of objectives for the defense of competition in Brazil”. The
author has conducted a review of the jurisprudence and has analyzed 95 documents, such as cases,
normative rules, technical notes, and concluded that the Brazilian Competition Policy fails to dene
adequately the objectives of the Law.
In these cases, the antitrust authority has dened the objective of the antitrust policy in
several different scenarios, such as (i) the preservation of freedom of initiative, free competition, the
social function of property, consumer protection, and repression of the abuse of economic power;
(ii) economic well-being; (iii) consumer welfare; (iv) the protection the competition itself; (v) efcient
45 Article 170. The economic order, founded on the appreciation of the value of human labor and on free enterprise,
is intended to ensure everyone a dignied existence, ac cording to the imperative of social justice, with due regard for the
following principles: I – national sovereignty; II – private property; III – social function of property; IV – free competition;
V – consumer protection; VI – environment protection, which may include differentiated treatment in accordance with the
environmental impact of goods and services and of their respective production and delivery processes; (CA 42, 2003) VII –
reduction in regional and social inequalities; VIII – pursuit of full employment; IX – preferential treatment for small-sized
enterprises organized under Brazilian law and having their headquarter and management in Brazil (CA 6, 1995).
46 Several economic studies emerged in this period. As an example, we quote Baker and Salop (2015, p. 14): “To the con-
trary, median income and wealth both declined in real terms between 2010 and 2013. Over essentially the same period, the real
income of the top 1% grew by 31.4%,4 and the income share of the top 1% increased from 17.2% to 19.8%. The fact that economic
growth has effectively been appropriated by those already well off, leaving the median household less well off, raises serious
economic, political, and moral issues.” An example of this discussion was brought by journalist Catherine Rampell (2015).
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Brandesianists? Revista de Defesa da Concorrência, Brasília, v. 10, n. 2, p. 7-23, 2022.
https://doi.org/10.5286/rdc.v10i2.987
allocation of resources in the economy; (vi) social policies and social effects; (vii) among others.
Also, in a recent case,
47
CADE’s General Superintendence has issued a technical note suggesting
that the three major telecom companies should be sanctioned for collusive behavior in a public bid
in which they participated together. The judgment has not nished, but it was mentioned the fact the
discount provided of approximately 20% should be relativized and could not be considered as an
undisputed proof of efciency.
The Federal Prosecutor has issued a Technical Note in which indicated that “[h]owever, the
gains of efciencies cannot be competition cost. There must be a balance between efciency and
broad competition, even despite the legal provision of the consortium institute in public bids.”
48
It
seems, by this position, that the achievement of efciencies and consequently the price reduction for
the consumer, which seems to be the foundation stone of the Chicago School has been relativized.
In this way, it is worth mentioning that also the Brazilian Antitrust Law fails to establishes a
single objective for our antitrust policy, when it denes on its rst article that “[t]his Law structures
the Brazilian System for Protection of Competition - SBDC and sets forth preventive measures and
sanctions to the violations against the economic order, guided by the constitutional principles of free
competition, freedom of initiative, social function of property, consumer protection and repression
against the abuse of the economic power.” Since the existence of several different objectives, it is
not a surprise, in the same way, that concluded Jasper (2019), that our jurisprudence is not able to
correctly articulate an objective or set of objectives for the defense of competition in Brazil.
Considering the midlife crisis of the antitrust goals in the United States, it is possible to
assess that Brazil is under an adolescent crisis but has not became aware of that yet.
7. CONCLUSION
In conclusion, antitrust law was born to ght trusts. At the time, the means used to tackle the
activities of these large conglomerates and cartels were irrelevant. What mattered was the purpose,
which gave rise to a law based on multiple sociopolitical objectives. This fact was extremely important
and enabled competition law to achieve its intended purpose at that time. It so happens that having
different goals allowed competition law to be used to pursue different purposes. Supported by the
Harvard School, antitrust authorities sought to deconcentrate markets.
Later the purpose of antitrust law became the maintenance of deconcentrated market
structures with the greatest possible number of agents, preferably small ones. Mergers and
acquisitions and vertical practices came to be considered illegal.
The Chicago School then began to advocate for the use of a single economic concept,
that of consumer welfare, so that the state should only intervene if economic practices negatively
impacted consumer welfare. After decades of being widely used, this vision came to be considered
too permissive, as it opened the door for the resurgence of large corporations. This permissivity
came to be questioned by neo-Brandesians.
The Neo-Brandesians claim a return to the origins of antitrust law,
49
guided by the expansion
47 Brazil. Administrative Process n. 08700.011835/2015-02.
48 Technical Note n. 05/2021/WA/MPF/CADE.
49 Horton (2018) points that it is time to return to an antitrust regulatory system that better reects Congress’s dynamic
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of the objectives of competition law, which should be concerned with political, social, and economic
issues. This vision, however, encountered enormous resistance, as it is believed that it would mean
a return to legal uncertainty and economic disorganization which were the downfall of the Harvard
School.
It is undeniable, however, that neo-Brandeisians sought to debate highly relevant points,
such as the reduction of inequalities, workers’ wages, concerns about democracy, political systems,
among others. Ignoring the school’s criticisms and simply trying to dismiss them by calling them
romantic or hipsters does not seem to be smart. Competition law will need to deal with new problems,
such as access to data,
50
income distribution, and workers’ wages, in addition to other social and
political issues.
This is a new reality that brings a new discussion and new problems. Ignoring this new
perspective is just like a grown man ignoring adulthood problems. Just like in our lives, facing new
dilemmas does not mean that we have to question the journey and rethink everything that we have
achieved. In this sense, the mere existence of sociopolitical problems and digital concerns does not
necessarily mean that antitrust should go back to its origins and have more than a single economic
objective.
This scenario about new dilemmas, new problems, and new perspectives for antitrust seems
clear in the USA, in which especially the big techs obliged the antitrust doctrine to rethink the
competition police. Synthetizing this position Newman (2022) mentions that the link between output
and consumer welfare would break down once a variety of conduct would push output and welfare
in opposite directions.
As examples of practices that could push consumer welfare and output in different directions
the author mentions: (i) creating, exploiting, or alleviating Information asymmetries’; (ii) externalizing
costs; (iii) coercion, contractual tying, technological tying, foreclosure strategies, (iv) Interbrand
vertical restrain; (v) among others.
51
Once output and consumer welfare might not be pointing at
the same direction “outputist analysis is often unworkable in markets—for labor, social networking,
online search, and more— that are of particular interest to contemporary antitrust” (NEWMAN, 2022,
p. 1).
However, the discussion is well developed in USA, this scenario seems different in Brazil. This
stem from the fact that most of the discussion of the “contemporary antitrust” comes from the big
techs which created and established zero price markets in which the consumer welfare perspective
based solely on price is maybe inapplicable.
As a teenager, Brazilians know the discussion, but stills without a clear denition of what
are the objectives of antitrust, especially when considering the case laws judged by CADE. Although
the Brazilian Competition Authority has issued some precedents that mentioned the discussion, this
matter has never been a real point of interest for our competition authority.
historical balancing and blending of multiple fundamental American social, political, moral, and economic values. To do so,
we must begin rediscovering antitrust’s lost values, and recommence our historic pursuit of an ethical, moral, and fair free-
enterprise system truly devoted to the long-term economic and social welfare.
50 For further information see Motta (2021).
51 Although the possibility of some practices could lessen the competition, it is important to establish that most of
the conducts mentioned by the author could be analyzed and condemned taking into consideration the consumer welfare
objective.
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Also, however the case laws usually mention economic parameters, it seems that in Brazil the
discussion also should take into consideration the existence of other principles to guide the economic
order besides a single economic orientation. Once those principles are indicated in the Brazilian
Constitution and in the Brazilian Competition Law, this debate about the objectives will probably
emerge in the future, when we have become adults. Now, we can see Brazil is going through a quarter
life crisis merely focusing on early discussions about Harvard, Chicago, and the New Brandesianists.
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COMO CITAR ESTE ARTIGO:
LINHARES, Athayde Amanda; ROS, Luiz Guilherme. The midlife crisis of the antitrust goals: where does
the Brazilian Competition Authority stand among Harvard, Chicago and Neo-Brandesianists? Revista
de Defesa da Concorrência, Brasília, v. 10, n. 2, p. 7-23, 2022.
